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SEYMOUR  DURST 


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OPINION 


DANIEL  B.  TALLMADGE;  ESQ. 

IN  RELATION  TO  THE 

CONSTITUTIONAL  POWERS  OF  THE  LEGISLATURE, 
TO  TAKE  FROM  THE  CITY  OF  NEW  YORK,  THE 

FERRY  FRANCHISE, 

BETWEEN 

NEW  YORK  AND  BROOKLYN. 

PREPARED  AT  THE  REQUEST  OF 

THE  MAYOR 
OF  THE  CITY  OF  NEW  YORK. 


NEW  YORK,  MARCH,  1835. 


HE 


 jgg 

AT  a  very  la.ge  and  respectable  meeting  of  the  citizens  of 
the  9th,  11th  and  l5ih  Wards,  held  at  Vauxhall  Garden,  on  Thursday, 
the  19thinstant,  Saul  Alley,  Esq.  was  appointed  President,  E.  H. 
Warner  and  J.  F.  Buttrrworth,  Vice  Presidents,  Henry  f.  Robert-  I 
son,  and  Warren  Curtis,  Secretaries.   Gideon  Lee,  Esq.  tfter  mak-  | 
ingsome  pert  inent  remarks  on  the  subject  to  consider  which  the  mee-  I 
ting  was  called,  offered  the  following  resolutions,  which  were  a-  ! 
dopted. 

Resolved,  That  this  meeting  do  unanimously  approve  of  the  politi- 
cal maxim  :  That  the  intercommunication  of  each  portion  ot  a  coun- 
try with  all  other  portions,  should  be  promoted  by  all  available 
means. 

Resolved,  That  this  maxim  is  peculiarly  applicable  to  the  city  of 
New  York. 

Resolved,  That  all  the  necessary  ferries  from  this  city  to  the  popu- 
lous plaees  on  the  surrounding  shores,  should  and  ought  to  be  estab- 
lished. 

Resolved,  That  the  Bill  now  in  the  Assembly,  providing  "  That 
the  Lieutenant-Governor,  the  Comptroller,  the  Surveyor  General, 
the  Secretary  of  State,  the  Attorney  General,  and  the  Treasurer, 
shall  be  Commissioners  with  power  to  licence  and  establish  so  many 
ferries, and  at  such  places  asin  their  opinion,  the  public  convenience 
may  require  between  the  city  of  New  York  and  Long  Island,"  does, 
in  the  opinion  ot  this  meeting,  propose  a  most  impolitic,  unjust,  and 
dangerous  innovation  upon  the  ohartered  rights,  property  and  reve- 
nues of  the  people  of  the  city  of  New  York. 

Resolved,  That  a  copy  of  the  proceedings  of  this  meeting  be  for- 
warded to  oar  delegation  in  the  Legislature  of  the  Slate. 

Resolved,  That  a  committee  of  twenty-one  be  aopointed  to  call  a 
general  meeting  of  the  citizens  at  Tammany  Hall,  at  such  time  as 
they  may  deem  proper,  to  take  into  consideration  the  important  sub- 
ject of  our  ferry  interests  now  pending  before  the  Legislature  of  our 
State,  and  that  said  committee  be  empowered  to  take  all  neeessary 
steps  rel.tive  thereto.  Whereupon,  the  following  persons  were  ap- 
pointed the  committee  :— 

Gideon  Lee,  James  M'Donald, 

Jas.  B.  Murray,       Anson  G.  Phelps, 

Garrit  Gilbert,        Wm.  Paxson  Hellett 

Riehard  Ray  Ward,  Stephen  Allen, 

Israel  Dean,  Franklin  S.  Kinney, 

Hugh  Maxwell,       John  J.  Morgan, 

Thomas  E.  Davis,    John  StilweTl, 

Resolved,  That  the  officers  of  this  meeting  be  added  to  the  com- 
mittee. 

The  meeting  was  addressed  by  Gideon  Lee,  Esq.,  Israel  Dean, 
James  Lent,  John  Walsh,  and  James  B.  Murray.  The  latter  gentle- 
man offered  the  following  resolution,  which  was  also  adopted. 

Resolved,  That  the  system  of  granting  long  leases  ot  extensive 
districts  of  the  shores  of  this  Island  to  individuals,  for  the  purp  se  of 
exercising  exclusive  ferry  privileges  for  private  emolument,  creates 
and  encourages  monopolies  of  the  worst  deseription,  and  is  in  direct 
violation  of  tha  clearest  principles  of  equal  rights;  and  that  all  future 
grants  should  contain  a  clause  reserving  to  the  authorities  of  this 
city  the  power  of  establishing  additional  lerrieswhenever,  and  where- 
ever  the  public  good  may  require ;  or,  what  would  be  preferable, 
that  the  power  of  establishing  them  should  be  retained,  and  exer- 
cised solely  by  the  Common  Council,  to  the  end,  that  their  number 
and  position  may  be  made  commensurate  to  th«;  public  eonvenience, 
and  an  uniform  an  i  material  reduction  be  obtained  in  the  high  rates 
of  ferriage  which  are  now  extorted  from  the  eommunity. 

Resolved,  That  the  proceedings  of  this  meeting  be  published. 

SAUL  ALLEY,  President. 

w^rcRBrte:t50Dise"^»- 

The  above  committee  are  requested  to  meet  at  Vauxhall  Garden, 
on  Tuesday  evening  next,  at  half  past  seven  o'clock.   m24  3t 


Russell  Stebbins, 
Nathan.  T.  Arnold, 
J.  W.  Tinsdale, 
Nathan  H.  Wolfe, 
Anson  Blake, 
John  L.  Mason, 
Peter  Stuyvesant. 


Is 
and  r 
andB 
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that  £ 
other 

Be 


,  keep 
f  York 
>ration 
evoke 
to  an- 

guage, 


New  York  and  Brooklyn  Ferries. — The  bill  to 
establish  and  regulate  these  ferries,  which  was  ordered 
to  a  third  reading  in  the  House  of  Assembly,  on  Satur- 
day, is,  according  to  the  Albany  Argus,  in  substance, 
as  follows : 

"It  allows  an  appeal  from  the  decision  of  the  Com- 
mon Council  of  IVew  York,  on  an  application  for  a 
ferry,  to  the  commissioners  of  the  land  office,  who  are 
authorized,  on  certain  conditions,  to  grant  such  appli- 
cation for  a  period  not  exceeding  ten  years.  All  fer- 
ries hereafter  established  under  this  act,  to  be  subject 
to  the  laws  of  the  state,  passed  or  to  be  passed,  and  the 
ordinances  of  the  Common  Council  of  New  York  rela- 
tive to  ferries,  their  wharves,  &c,  on  the  East  River. 
Inhabitants  of  New  York  or  Long  Island  to  have  the 
right  to  compound  with  the  lessees  of  9uch  ferries  at 
six  dollars  a  year,  (children  under  15  at  half  that  sum,) 
for  the  privilege  of  passing  at  pleasure.  The  commis- 
sioners to  have  $2  a  day,  while  employed  under  the  act. 
All  owners  of  ferries  between  the  two  places  to  report 
annually,  under  oath, to  the  Comptroller,  the  amount 
of  tolls  and  ferriage  received  during  the  year,  and  the 
expenditures,  capital,  &c.,  in  order  that  the  Legislature 
i  may,  from  timp  to  time,  alter  and  establish  the  rates  of 
Or  terr.  ferriage.    It  also  reserves  to  the  Corporation  of  New  ^rk,  in 

York  all  their  rights  to  the  emoluments,  &c,  of  ferries  j 
relatio  heretofore  establisned,  and  their  chartered  powers  to  k  York 
j  n  license  and  establish  ferries."  1 

and  Jji   -  r.  ^  j  ^,  i  if  j  i  uncfiise 

is  not  limited  to  the  right  to  run  a  ferry- 
boat from  one  dock  or  point  to  another ;  but  it  in- 
cludes in  it  also,  a  prohibition  to  any  other  person  to 
run  a  ferry  boat,  within  certain  limits,  from  either 
of  the  landing  places.  Thus  the  grant  to  Jona.  L  N  York 
than  Emmons,  of  the  right  to  set  up  and  keep  1813>  P-  268> 
a  ferry  across  the  outlet  of  the  Oneida  Lake? 
prohibits  any  other  person  from  ferrying  within  two 
miles,  either  above  or  below. 

When  a  grant  is  made  of  a  ferry,  with  a  prohibitory 
clause  to  others,  for  any  specified  distance,  it  requires 
no  argument  to  prove  that  another  grant  cannot  be     See  patents 
made  within  the  prohibited  distance.  in  office  ofSec- 

r  <  retary  of  State, 

In  1752,  a  ferry  across  the  Hudson  at  Kingston  was  vol.  from  1739 
granted  by  Letters  Patent  to  Kipp  and  Cantine  :  the  42i.7°3,p  °' 
patent  contained  a  clause  excluding  all  other  persons 
from  setting  up  a  ferry  within  two  miles  above  and 
below.    This  grant,  therefore,  may  be  said  to  be  a 


4 


grant  of  the  ferry  franchise  to  the  extent  of  four 
miles,  and  no  grant  could  afterwards  be  made  within 
those  bounds. 

Clty  cii?rter'     The  first  charter  of  the  city  of  New  York,  now  to  be 
p.  1 ,  to  26.  J  ' 

found,  was  granted  by  Governor  Dongan  in  1686.  A 
recital  in  this  charter  shews  that  previous  to  that  time, 
the  city  of  New  York  had  become  the  grantees  of  a  fer- 
p   '  ry  from  New  York  to  Long  Island,  (now  Brooklyn.) 

In  1708,  the  corporation  of  New  York  petitioned  for 
Charter  of  a  new  charter,  confirmatory  of  all  previous  grants  and 
1708.  p.  27  to  charter  antj  in  their  petition  they  set  forth  and  assert- 
p.  27.  ea"  their  right  to  the  ferry  from  N.  Y.  to  Nassau  Island, 

(Brooklyn) and  recited  that  their  "  profits,"  &c.  from 
the  ferry  "fell  short,  of  what  might  reasonably  be  made 
"  of  the  same,  for  the  want  of  the  bounds  and  limits 
p.  28.         «  to  be  extended  and  enlarged  on  the  said  Island 
side,"  (Brooklyn.)    They  therefore  prayed  a  confir- 
mation of  the  Old  ferry,  and  a  grant  of  the  lands  from 
high  water  mark  to  lowr  water  mark  on  Nassau  Island, 
p"    '         "from  Wall-about  to  Redhook,  for  the  better  im- 
"  provement  and  accommodation  of  the  said  ferry, 
"  with  full  power,  leave  and  license,  to  set  up,  esta- 
"  blish,  maintain  and  keep  one  or  more  ferry  or  fer- 
"n'es,  &c.  within  the  bounds  aforesaid,  as  they  should 
"see  meet  and  convenient,  and  occasion  require,  &c." 

This  petition  is  recited  at  length  in  the  charter  of 
1708,  by  Governor  Cornbury  ;  after  which  recital, 
p.  29.         the  charter  proceeds  as  follows  :  "  The  which  peti- 

"  tion  we  being  minded  to  grant,  know  ye,"  &c. 
p  29  Then  follows  the  grant  and  confirmation  of  the  Old 

ferry,  "  with  all  and  singular  the  usual  and  accustom- 
"  ed  ferriage,  fees,  perquisites,  rents,  issues  and  pro- 
"  fits,  and  other  benefits  and  advantages,  whatsoever} 
"  to  the  old  ferry  belonging  or  thereout  arising ;  and 
"also  all  the  unappropriated  ground,  &c.  from  high  wa- 


5 


M  ter  mark  to  low  water  mark,  contiguous,  and  front- 

u  ing  the  said  city  of  New  York,  from  Wall-about  to 

"  Redhook,  &c.  &c.  with  all  and  singular  the  rents, 

"  issues,  profits,  ways,  waters,  easements,  and  all  oth- 

"  er  benefits,  profits,  advantages  and  appurtenances,  P-30- 

"  which  heretofore,  have  now,  are,  and  which  hereof- 

"  ter  shall  belong  to  the  said  ferry,  vacant  land  and  pre- 

"  mises,  &c.  together  with  the  yearly  and  other  rents, 

"  revenues  and  profits  of  the  premises,  &c.  except,  and 

"  always  reserved,  out  of  this  our  present  grant  and 

"  confirmation,  liberty  to  all  and  every  person,  inha- 

"  biting  or  having  plantations  near  the  said  river,  by 

"  the  water  side  within  the  limits  and  bounds  above 

"  mentioned (i.  e.  from  Wall-about  to  RedhookJ  "to 

"  transport  themselves,  goods,  &c.  over  the  said  river 

"  to  and 'from  the  city  of  New  York,  &c.  without  fer- 

M  riage,  &c.  Habendum,  &c.  And     P-  31« 

"  we  do  further  &c.      give    and  grant  unto  the 

"  said  Mayor,  aldermen  and  commonalty,  &c.  full  and 

"  free  leave  and  license,  to  set  up,  establish,  keep 

"  and  maintain,  one  or  more  ferry  or  ferries,  as 

"  they  shall  from  time  to  time  think  fit  and  conve- 

"  nient,  within  the  limits  and  bounds  aforesaid,  for 

"  the  ease  and  accommodation  of  transporting  pas- 

a  sengers,  (a)  goods,  &c.  between  the  said  city  of  New 

"  York,  and  the  said  Island,  ( except  as  is  herein  be-    p.  32. 

"fore  excepted,)  (b )  under  such  reasonable  rates  and 

"  payments,  as  have  been  usually  paid  and  received 

(a)  No  inference  unfavorable  to  the  absolute  right  of  the  corpora- 
tion, can  be  drawn  from  these  words.  Tt  is  the  usual  language  of  a 
ferry  grant,  and  is  employed  in  the  Letters  Patent,  granting  ferries  to 
individuals.    See  post  page  7. 

(b)  Exception  in  favor  of  those  owning  plantations  between  Red- 
hook  and  Wall-about  who  are  permitted  to  transport  themselves, 
goods,  &c. 


8 


"  for  the  same3  or  which  at  any  time  hereafter  shall 
"  be  by  them  established,  by  and  with  the  consent 
<f  and  approbation  of  our  Governor  and  council  for 
u  the  time  being." 

By  the  charter  then  of  1708,  it  will  be  perceived, 
the  Old  ferry  is  granted  and  confirmed  ;  and  to  pre- 
vent the  "  profits  from  falling  short  of  what  might 
"reasonably  be  made,  of  the  same,  the  bounds 
"  and  limits  are  extended  and  enlarged,  on  the  Island 
side,  from  Wall-about  to  Redhook." 

And  all  persons  are  prohibited  from  ferrying  with- 
in those  bounds,  saving,  that  the  inhabitants  owning 
plantations  may  transport  their  own  goods,  &c  :  and 
the  corporation  have  the  further  "  grant,  to  set  up, 
"  establish,  keep  and  maintain  one  or  more  ferries 
within  the  bounds  aforesaid."  (c) 
See  patents     *  have  looked  into  two  Patents  for  ferries,  granted 

in  office  of  Sec.  to  individuals.    The  first,  is  a  grant  to  Adoniah 

of  State,  vol.  _         .       .  ° 

from  1731   to  bchuyler,  in  1731. 

1739,  p.  319.       Thig  patentj  as  does  the  charter  to  trie  Cliy  0f 

New  York,  recites  the  petition  for  the  franchise, 
after  which  follows  the  grant  in  these  words : 

"  Know  ye,  that  of  our  especial  grace,  certain 
u  knowledge  and  mere  motion,  we  have  given,  grant- 
"  ed,  ratified  and  confirmed,  and  by  these  presents  do 
"  give,  &c.  unto  Adoniah  Schuyler,  his  heirs  and 
"  assigns  forever,  the  sole  and  full  liberty  and  power 
"  of  setting  up,  establishing  and  keeping,  using  and 
"  employing  at  all  times  forever  hereafter,  a  good 
"  and  sufficient  ferry  from  the  nearest  part  of  Staten 
"  Island  aforesaid,  right  across  the  meadows  and  river. 

See  pam-  (c)  ^  1S  conceded  that  the  grant  under  this  charter,  vested  in  the 
phlet  "  in  rela-  corporation  of  New  York,  "  a  free-hold  property  in  the  Old  ferry," 
tion^todienew  beyond  Legislative  control.  It  must  then  have  so  vested  the  Old 
Sac,  p  73.        ferrV  vvitn  its  extended  and  enlarged  bounds. 


i 


M  then  to  Elizabeth-town-point  aforesaid,  on  both 
"  sides  of  the  said  river,  for  the  safe  and  expeditious 
"  transportation,  carriage  and  convenience  of  all 
"  travellers  and  passengers,  and  of  horses,  and  cat- 
"  tie,  and  of  all  manner  of  goods,  wares,  and  mer- 
"  chandize,  whatever,  to  and  from,  and  between  the 
M  places  aforesaid,  and  to,  and  from,  and  between 
"  all  the  parts  and  places,  by  the  said  river  side, 
"  then  on  both  sides  of  the  river,  as  far  as  Suitor's 
"  Island  and  Thompson's  Creek,  and  also  full  liber- 
"  ty  to  ask,  demand,  and  take,  for  ferriage,  &c.  the 
"  several  and  respective  fees  herein-after  mention- 
"  ed,  to  wit,  &c."  (here  follow  the  items  of  ferriage, 
with  this  conclusion)  "  or  such  fees  as  shall  be 
"  hereafter  lawfully  established,  for,  or  concerning 
"  the  same,  by  and  with  the  consent  and  approbation 
"  of  our  Governor,  and  our  Council  for  the  same 
"  province,  for  the  time  being.  And  also  all  manner 
"  of  privileges,  rights,  liberties,  profits,  convenien- 
u  ces,  and  appurtenances  whatsoever,  to  such  ferry  be- 
u  longing,  or  appertaining,  except,  and  always  reserv- 
"  ed  out  of  this  our  present  grant,  free  liberty  to  all 
"  persons,  who  shall  inhabit  and  have  plantations, 
u  between  Suitor's  Island,  and  Thompson's  Creek,  to 
"  transport  and  convey  themselves,  fyc.  in  their  own 
u  boats,  fyc." 

The  other  Patent  to  Kipp  and  Cantine,  for  a  ferry 
across  the  Hudson  river,  at  Kingston,  granted  in 
1752,  is  in  form  like  the  one  to  Schuyler.    It  grants     bee  patent[J 
to  them  "  the  power,  liberty,  and  authority,  privi-  in  Se,cretary  of 

it  i  j    *  i_*      r  State's    office 7 

lege  and  right,  of  setting  up,  establishing,  keeping,  vol.  from  1739 
"using  and  enjoying,  a  public  ferry,  to  be  duly  tol753'p42°' 
"  kept  and  attended,  for  the  convenience  of  pass- 
"  ing  and  repassing,  with  travellers,  horses,  <$-c,  to 
"  and  from  the  said  landings,  of  the  said  Kipp  and 


s 


c<  Cantine,  exclusive  of  all  others,  to  keep  any  ferry 
"  within  two  miles  above  or  below  the  said  several 
"  landings,  and  also  full  and  free  liberty,  &c.  to  re- 
"  ceive,  &c.  the  respective  fees  herein-after  mention- 
"  ed,  to  wit,"  (enumerating  the  items  of  ferriage,  with 
this  conclusion,)  "  and  they  the  said  Kipp  and  Can- 
"  tine,  shall  not  demand  or  take,  any  other,  or  great- 
"  er  fees,  &c.  than  the  said  fees  above  mentioned,  or 
"  such  other  fees  as  shall  be  hereafter  legally  estab- 
"  lished. 

This  Patent,  also,  contains  an  exception  in  favor 
of  the  inhabitants  owning  plantations  on  the  river 
side,  within  the  two  miles,  above  and  below,  to 
transport  themselves,  &c.  in  their  own  boats. 

In  the  foregoing  two  several  Patents,  to  individ- 
uals, it  must  be  conceded,  that  the  grant  is  of  the 
entire  franchise,  within  the  prohibited  bounds  ;  that 
the  freehold  to  that  extent  is  perfectly  vested 
in  the  grantees,  and  that  nothing  remains  in  the  Sove- 
reign  power,  to  grant  to  another. 

The  grant  to  the  city  of  New-York,  is  substan- 
tially in  the  language  of  these  Patents  to  individuals, 
with  similar  prohibited  bounds,  but  with  an  addi- 
tional grant,  of  the  full,  free,  leave  and  license  to  "set 
up,  establish,  or  keep  one  or  more  ferry,  or  fer- 
u  ries,  as  they  shall  from  time  to  time  think  fit  and 
"  convenient  within  the  limits  and  bounds." 

Assuming  that  the  corporation  of  the  city  of  New 
York  is  as  capable  of  taking  under  such  a  grant,  as 
an  individual,  of  which  there  can  be  no  doubt,  I  think 
it  must  be  conceded,  that  in  1708,  all  the  ferry  fran- 
chise, across  the  east  river,  from  New-York  to  Brook- 
lyn, extending  from  Wall-about  to  Redhook,  was 
vested  in  the  corporation  of  New-York. 

Has  the  franchise,  been  surrendered,  or  by  any 


9 


subsequent  charter,  or  legislative  enactment,  taken 
away  ? 

In  1730,  twenty  two  years  after  the  grant  of  the 
franchise  extending  from    Wallabout  to  Redhook, 
the    corporation  of  New-York,   petitioned  for  a 
new  charter,  and  a    confirmation  of  all  previous 
grants ;  and  one  among  other  reasons  assigned,  was^ 
that  their  previous  charters,  had  been  made,  in  the 
"  Governors'  own  names  respectively,  when  they 
"  should  have  been  made  in  the  respective  names, 
"  styles  and  titles,  of  former  Kings  and  Queens." — 
The  petition   recited  the  two  previous  charters  at 
length,  and  prayed  "  for  a  confirmation  and  grant,  to 
"  the  said  city  and  corporation,  of  all  their  lands, 
"  tenements,  public  buildings,  and  hereditaments, 
"  wharves,  docks,  bridges,  slips,  ferries,    cranes,  charter 
ic  grants,  charters,  rights,  liberties,  'privileges,  f ran-  36- 
"  chises,  free  customs,  pre-eminences,  advantages, 
"  jurisdictions,  emoluments,  and  immunities,  now  and 
"  heretofore  held  and  enjoyed and  a  further  pray- 
er, that  they  might  have  the  soil,  400  feet  below 
low  water  mark,  from  Bestavers  Kilitie  to  Corlaers 
Hook.    "  And  also  for  a  grant  of  such  other  powers,  charter 
"  liberties,  franchises,  rights,  free-customs,  jurisdic-  37- 
"  tions,  privileges,  immunities  and  things  as  may  be 
u  needful  for  the  good  rule  and  government  of  the 
city." 

This  charter  after  reciting  the  petition  at  length, 
contains  a  full  grant  and  confirmation  of  all  previous  P 
grants  and  charters,  in  general  terms,  and  as  to  the 
ferry  franchise  in  particular,  as  follows  :  "  And  we  do 
"  by  these  presents  &c.  give,  grant,  ratify  and  con-  p>  93. 
"  firm  unto  the  said  mayor,  &c.  the  ferry  and  ferries 
"  on  both  sides  of  the  east  river,  and  all  other  ferries 
"  now  or  hereafter  to  be  erected  and  established  all 

2 


10 


"  around  the  Island  of  Manhattan,  and  the  manage* 
"  mentj  and  rule  of,  and  all  fees,  ferriages  and  per- 
"  quisites,  &c.  also  the  soil  or  land  between  high  and 
"  low  water  mark,  on  the  said  Island  of  Nassau,  from 
"  the  east  side  of  Wall-about  to  the  west  side  of  Red- 
"  hook,  &c.  and  also  all  and  singular,  other,  the  rights, 
"  privileges,  lil  erties,  franchises,  ferries,  ferriages, 
"  fees,  &c.  &c.  and  saving  to  the  inhabitants,  or  those 
"  that  have  plantations  by  the  water  side,  between 
"  Wall-about  and  Redhook,  the  right  of  transporting 
"  themselves,  and  their  own  goods  only,  in  their  own 
"  boats,  from  and  to  their  respective  dwellings  or 
"  plantations,  without  paying  ferriage  ;  To  have 
"  and  to  hold,  all  and  singular  the  premises  afore- 
"  said  and  every  part  and  parcel  thereof,  (except  and 
"  saving,  as  is  herein  excepted  and  saved)  unto  the 
"  said  Mayor,  aldermen  and  commonalty  of  the  citj 
u  of  New  York,  and  their  successors  forever,  to  their 
"  only  proper  use  and  behoof  forever." 

"  And  further  we  do  grant  unto,  and  covenant  with 
"  the  said  Mayor,  aldermen,  &c.  and  their  successors, 
"  that  they  and  their  successors  forever  hereafter 
"  may  and  shall,  have,  hold,  use,  possess,  and  enjoy, 
"  all  the  rights,  privileges,  liberties,  franchises,  ju- 
"  risdictions,  courts,  powers,  offices,  authorities,  mar- 
"  kets,  ferries,  fees,  fines,  amerciaments,  perquisites, 
"  profits,  immunities,  &c:  and  that  these  our  Letters, 
"  being  entered  of  record,  &e.  &c.  in  and  through  all 
"  things,  shall  be  construed,  and  taken,  and  expound- 
"  ed,  most  benignly,  and  in  favor,  and  for  the  most 
u  and  greatest  advantage,  profit ,  and  benefit  of  the 
"  said  Mayor,  aldermen  and  commonalty  of  the  city 
"  of  New  York." 

The  present  applicants  to  the  Legislature,  for  a 
rant  of  a  new  ferry,  seize  upon  the  closing  words. 


u 


in  the  prayer  of  the  petition,  as  recited  in  the  charter     p.  34. 

of  1730,  to  shew  that  saving  the  "  old  ferry"  from 

dock  to  dock,  nothing  hut  Legislative  powers,  in  re-   ,  ,See  .  P31?1" 

t '  0  °  r  t  '  phlet  "in  rela- 

gard  to  ferries,  is  granted  to  the  corporation.  tiontuthe  new 

It  should  be  horn  in  mind,  that  the  petition  to  ss^^***'  P 
which  the  words  in  question  are   the  concluding 
prayer,  was  a  petition,  asking  specifically,  and  by 
enumeration,  for  the  various  political  powers,  usual 
for  the  "  rule  and  government  of  a  city." 

The  conclusion  of  the  prayer,  therefore,  for  "  such 
* c  other  powers,  liberties,  franchises,  rights,  free- 
"  customs,  jurisdictions,  privileges,  immunities  and 
"  things,  as  may  be  needful  for  the  good  rule  and 
"  government  of  the  city"  naturally  refers  to  such 
political  rights,  powers,  privileges,  &c.  uas  are  need- 
ful for  the  good  rule  and  government  of  the  city." 

With  what  evident  impropriety  the  concluding 
words  of  this  petition  are  attempted  to  be  referred  to 
the  ferry  franchise,  instead  of  the  political  powers  pe- 
titioned for,  will  be  most  apparent,  when  we  consider, 
that  the  ferry  franchise,  from  Wall-about  to  Redhook, 
by  previous  grant,  made  in  1708,  about  twenty-two 
years  before,  was  already  vested  in  the  corporation,  as 
freehold  property,  and  not  as  a  right  or  privilvge  for 
"  rule  and  government :"  whilst  the  various  political 
powers  asked  for,  are  necessarily  referable  to  the  con- 
cluding clause  of  the  prayer,  being  strictly  and  only 
u  needful  for  the  good  rule  and  government  of  the 
city."  The  ferry  franchise  in  question,  therefore, 
instead  of  being  revoked,  or  abridged,  by  the  charter 
of  1730,  is,  in  terms,  recognized  and  confirmed. 

I  have,  I  think,  succeeded  in  showing,  that  this 
grant,  of  the  entire  and  exclusive  ferry  franchise, 
from  New-York  to  Brooklyn,  between  Wall-about 
and  Redhook,  is  such,  that  had  it  been  a  grant  to  an 
individual,  in  the  language  and  terms  of  the  several 


12 


city  Charters,  it  would  have  vested  in  such  individual, 
the  entire  franchise  with  the  right  "  to  set  up,  estab- 
lish  and  keep"  other  ferries  within  the  limits,  as  ho 
should  from  time  to  time  see  fit  ;  and  consequently, 
that  the  Legislature  would  not  possess  the  power 
to  revoke,  or  in  any  way  abridge,  or  alter,  the  grant. 

Have  the  Legislature  any  greater  power  over 
this  franchise,  because  it  is  granted  to  a  city  ? 

It  is  said,  that  the  statute  of  1813,  relative  to  the 
S^i2j!^phto  city  of  New  York,  "  contains  numerous  provisions 
New  south  fer-  u  on  the  subject  of  ferries  and  ferriage,  between 
P  "  New  York  and  Long  Island,  which  fully  recognize 

"  the  general  control  of  the  Legislature  over  the 
"whole  subject."  Is  not  this  proving  too  much? 
This  statute  embraces  all  the  ferries,  between  New 
York  and  Long  Island,  and  consequently  the  "  Old 
ferry"  which,  it  is  conceded  the  corporation  have 
a  freehold  property  in,"  is  also  subject  to  the  entire 
control  of  the  Legislature ! 

An  act  of  the  Legislature  relative  to  previously 
chartered  rights  or  franchises,  can  never  be  resorted 
to,  to  establish  a  power  in  the  Legislature,  beyond  that 
exercised  by  the  act  itself :  and  in  all  cases  of  legis- 
lation, concerning  grants  of  franchises,  as  property,  it 
will  be  intended  that  the  legislation  was  at  the  re- 
quest, or  with  the  assent,  of  the  grantee. 
12  J  R  125  Spencer,  C.  J.,  says,  "Though  the  act  of  1S06  con- 
"  tains  no  recital  stating  that  it  was  passed,  on  the 
a  application  of  the  corporation  of  New  York,  yet 
"  we  must  presume  that  it  was  so  passed,  it  being  al- 
"  most  the  invariable  course  of  proceeding  for  the 
"  Legislature  not  to  interfere  in  the  internal  concerns 
"  of  a  corporation  without  its  consent. 

But  in  this  matter,  the  Legislative  enactments 
have,  thus  far,  been  in  perfect  accordance  with  the 
terms  of  the  grant.    The  grant  is  of  a  full  and  free 


18 


u  leave  and  license  to  set  up,  establish,  keep  and 

"  maintain,  one  or  more  ferries,  within  the  limits  and 

"  bounds  aforesaid,  &c.  under  such  reasonable  rates     Charter,  p. 

.32. 

"  and  payments  as  have  been  usually  paid  and  re- 
"  ceived  for  the  same  ;  or  which,  at  any  time  hereafter 
"  shall  be  by  them  established,  by  and  vjith  the  con- 
"  sent  and  approbation  of  our  governor  and  council 
"  of  our  said  province  for  the  time  being,"  then  the 
Legislative  body. 

The  Letters  Patent,  to  the  individuals  before  men- 
tioned, contain  similar  Legislative  reservations.  See 
ante  p.  7,  8. 

After  the  Revolution,  if  the  grantees  of  these  sev- 
eral ferries  desired  an  alteration  in  the  rates  of  fer- 
riage, their  only  course  was  to  apply  to  the  Legisla- 
twe,  in  lieu  of  the  "governor  and  council"  named 
in  their  respective  grants. 

The  first  Legislative  enactment,  in  relation  to  the 
ferries  between  New  York  and  Brooklyn,  was  in 
1801,  and  was  undoubtedly  at  the  request  of  the  cor- 
poration of  New  York. 

By  the  act  of  1801,  the  ferriage  or  fees  were  in-    2-  L-  N.  Y. 

.  383. 

creased,  and  by  several  sections  of  the  act,  the  rights 
of  the  city,  to  the  ferries,  granted  and  confirmed  in 
words  substantially  the  same  as  those  used  in  the 
several  charters. 

The  act  of  1813,  which  was  "  an  act  to  reduce  the   2- R<  L-  342 
"  several  laws  relating  to  the  city  of  New  York  into 
"  one  act,"  so  far  as  it  relates  to  the  ferries  in  ques- 
tion, was  substantially  a  re-enactment  of  the  act  of  356. 
1801. 

It  is  quite  clear,  that  neither  of  these  acts  of  the 
Legislature,  attempts  to  abridge  the  grants  by  the 
previous  Charters. 

For  grants  of  ferries  to  individuals  by  the  Legis- 


14 


lature,  see  sessions  1810 — 12 — 10  and  almost  ev- 
ery subsequent  year. 

Grants  by  legislative  enactment,  as  well  as  Letters 
Patent,  vest  the  franchise  in  the  grantee,  and  can- 
not be  revoked,  except  upon  just  ground  of  for- 
feiture. The  grant  then,  to  the  city  of  New-York, 
by  Charter,  or  Letters  Patent,  recognized  and  con- 
firmed by  Legislative  enactment,  must  vest  the  fran- 
chise irrevocably  in  the  corporation,  unless  the  cir- 
cumstance that  the  corporation  is  of  a  public  and  po- 
litical character,  gives  to  the  Government  powers  of 
revocation,  which  it  does  not  possess,  over  similar 
grants  to  individuals,  or  private  corporations. 

The  right  and  power  of  the  Legislature  do  not 
so  much  depend  on  the  kind  of  corporation,  to 
which  a  grant  is  made,  as  upon  the  subject  matter  of 
the  grant. 

The  power  of  revocation  must  always  depend 
upon  the  question,  whether  the  grant  be  one  of  polit- 
ical power,  or  a  grant  in  the  nature  of  property.  If 
the  former,  it  matters  not  whether  it  be  to  an  indi- 
vidual, or  a  private  corporation,  it  may  be  revoked. 
If  the  latter,  though  it  be  to  apolitical  corporation, 
it  cannot  be  recalled. 

A  private  corporation  may  be  clothed  with  political 
power  ;  as  the  "  Columbia  Manufacturing  Society," 
at  Columbiaville,  Columbia  county,  incorporated  in 
1S09. 

By  this  statute,  the  trustees  of  the  Columbia 
L  N  y  Manufacturing  Society  are  made  trustees  of  the 
1812,  p.  9.  village  of  Columbiaville  ;  and  are  clothed  with  pow- 
ers to  assess  upon  the  inhabitants,  highway  taxes — to 
pass  ordinances,  for  regulating  swine,  restraining  and 
regulating  the  sale  of  ardent  spirits,  to  impose  pen- 
alties, &c.    Here  then  we  find  a  private  manufactu- 


15 


ring  corporation  vested  with  political  power.  The 
private  character  of  this  corporation  does  not  render 
inviolate  this  political  trust,  and  the  Legislature  may 
at  any  moment  revoke  it. 

"  Mere  naked  powers,"  says  Judge  Story,  "  which 
"  are  to  be  exercised   for  the  exclusive  benefit  of  _.4-  Whea*  70(1 

Dartmouth  eol- 

"  the  grantor,  are  revocable  by  him  for  that  reason."  lege  case. 
Again.  "  State  legislatures   have  power  to  enlarge, 
"  repeal  and  limit  the  authorities  cf  public  officers,  694- 
in  their  official  capacities." 

It  was  upon  this  principle,  that  the  Legisla- 
ture passed  the  law  relative  to  Measurers  of  Grain  L.  N.  Y.  1832 
in  the  city  of  New  York,  and  that  the  Supe-  p" 
rior  Court  of  New-York  decided  the  case  of 
Sutton  vs.  Satterlee,  arising  under  that  act. —  Pamphlet  75 
The  case  was  never  reported  and  only  an  oral  opin- 
ion delivered.  Chief  Justice  Jones,  who  delivered 
the  opinion,  (of  which  I  took  a  note  at  the  time) 
said,  that  the  grant  to  the  corporation,  to  appoint 
Measurer's,  ( a)  was  a  grant  of  political  power, 
coupled  with  no  interest,  saving  the  fees  to  be 
paid  as  a  compensation  for  measuring  :  it  was,  there- 
fore, like  every  political  power,  subject  to  Legisla- 
tive control.  If,  said  he,  I  considered  the  grant 
in  the  light  of  property,  intended  as  a  source  of  rev- 
enue to  the  city,  I  should  feel  constrained  to  say, 
it  wTould  be  beyond  the  control  of  the  Legislature. 

These  authorities  abundantly  shew  that  a  political 

(a)  Charter  p.  69.  And  we  do  hereby  farther  grant  and  give,  unto 
the  said  mayor,  aldermen  and  commonalty,  and  their  successors  for- 
ever, the  office  of  Measurer  ;  of  and  in  the  said  city,  to  measure  salt, 
grain,  and  all  other  merchandize  measurable,  or  to  be  measured  in 
the  said  city,  To  have  and  to  hold  the  office  aforesaid,  &c.  and  to  ex- 
ercise the  same,  by  themselves  or  their  deputies;  and  to  take  and  re- 
ceive to  themselves  all  the  fees,  profits  and  perquisites,  to  the  said  office 
due,  or  to  be  due. 


16 


power,  vested  in  a  private  corporation,  may  be  revo- 
ked. On  the  other  hand,  a  town,  or  city,  is  a  public, 
or  political ,  corporation  ;  yet,  it  is  capable  of  holding 
property ;  and  a  grant  to  it,  by  the  government,  of 
lands,  or  other  property,  is  beyond  the  power  of  the 
Legislature  to  annul. 

The  State  of  Vermont,  by  statute,  in  1794,  grant- 
ed to  the  respective  towns  in  that  State,  certain  glebe 
lands,  lying  within  those  towns,  for  the  sole  use  and 
support  of  religious  worship. 

In  1799,  an  act  was  passed  to  repeal  the  act  of  1794. 
9  Cranch  43  But  tne  U.  S.  court  declared,  that  the  act  of  1794, 
292.  a  g0  far  as  jf  granteci  the  glebes  to  the  towns,  could 

"  not  afterwards  be  repealed  by  the  Legislature,  so 
"  as  to  divest  the  rights  of  the  towns  under  the  grant." 
Dartmouth  college  wras  incorporated  by  charter 
4  Wheat.  5JS.  from  the  British  crown,  in  1769.    In  1816,  the  Leg- 
legeTaTe11001"  islature  of  New  Hampshire,  without  the  consent  of 
the  corporation,  passed  an  act,  making  various  mate- 
rial alterations  in  the  grant.    This  law  was  resisted 
by  the  corporation,  on  the  ground  that  it  impaired  the 
obligation  of  contracts  within  the  meaning  of  the 
constitution  of  the  U.  S.    The  question  was  finally 
brought  before  the  United  States  court,  where  the 
act  of  the  Legislature  was  pronounced  "  repugnant 
to  the  constitution  of  the  United  States,  and  so  not 
valid."  p.  715. 

A  very  able  opinion  was  delivered  by  Mr.  Justice 
Story,  from  which  I  have  made  some  extracts  that 
appear  to  me  fully  to  establish  the  rights  insisted  on 
by  the  city  of  New  York,  in  relation  to  the  ferries 
in  question. 

Story.  u  It  may  also  be  admitted,  that  corpora- 
a  tions,  for  mere  public  government,  such  as  towns, 
"  cities,  and  counties,  may,  in  many  respects,  be 


C94. 


17 


u  subject  to  Legislative  control.  But  it  will  hardly 
"  be  contended,  that  even  in  respect  to  such  corpor- 
u  ations,  the  Legislative  power  is  so  transcendent 
"  that  it  may,  at  its  will,  take  away  the  private  pro- 
"  perty  of  the  corporation,  or  change  the  uses  of  its 
"  private  funds,  acquired  under  the  public  faith. 

"  Another  objection  growing  out  of  and  connected  P-  698- 
"  with  that  which  we  have  been  considering,  is,  that 
"  no  grants  are  within  the  constitutional  prohibition, 
"  except  such  as  respect  property,  in  the  strict  sense 
"  of  the  term  ;  that  is  to  say,  beneficial  interests  in 
"  lands,  tenements,  and  hereditaments,  &c.  &c.  which 
"  may  be  sold  by  the  grantees  for  their  own  benefit ; 
u  And  that  grants  of  franchises,  immunities  and  au- 
"  thorities,  not  valuable  to  the  parties  as  property, 
"  are  excluded  from  its  purview. 

"  No  authority  has  been  cited  to  sustain  this  dis- 
"  tinction,  and  no  reason  is  perceived  to  justify  its 
"  adoption.  There  are  many  rights,  franchises  and 
"  authorities,  which  are.  valuable  in  contemplation  of 
"  law,  where.no  beneficial  interest  can  accrue  to  the 
"  possessor.  *  *  * 

"  In  respect  to  corporate  franchises,  they  are,  pro- 
"  perly  speaking,  legal  estates,  vested  in  the  corpo- 
"  ration  itself,  as  soon  as  it  is  in  esse.  They  are  not 
"  mere  naked  powers  granted  to  the  corporation,  but 
"powers  coupled  with  an  interest." 

But  may  not  the  Legislature,  for  non-user  or  mis- 
user of  a  franchise,  granted  to  a  City,  (charges  that 
are  made  against  the  grantees  of  the  franchise  in 

I  think  not.  Courts  of  justice  furnish  the  only 
remedy.  «  All  franchises  are  granted  on  condition 
"  that  they  be  duly  executed,  according  to  the  grant ; 


18 


Cc  and  if  the  grantees  neglect  to  perform  the  terms, 
may  be  repealed  by  scire  facias." 
Chittya  law      u  A  scire  facias  is  proper,"  says  Mr.  Justice  Ash- 
i62.Prer°°atIVe  hurst,   "  when  there  is  a  legal  existing  body,  capable 
"  of  acting,  but  who  have  been  guilty  of  an  abuse  of 
"  the  power  entrusted  to  them  ;  for,  as  a  delinquent 
"  cy  is  imputed  to  them,  they  ought  not  to  be  con- 
"  demned  unheard." 
6  Barnwell      Bailey,  J.    "  In  the  case  of  an  abuse  of  a  fran- 

and    C  res  well  J  ' 

703.  "  chise,  by  negligence,  the  crowTn  may  repeal  the 

"  grant,  by  scire  facias,  or  quo  warranto,  and  may 
"  vest  it  in  some  other  person." 
5  j.  ch.  R.     Kent.     "  But  that  a  corporation    is  to  be  ad- 

2S0'  "  judged  dissolved,  for  non-user,  or  misuser,  of  its 

"  franchises,  until  it  has  been  called  upon  to  answer 
u  for  the  breach  offrust,\s  no  where  assumed.  The 
"  contrary  doctrine  is  universally  taught,  and  it  is 
"  founded  on  very  obvious  principles  of  justice." 
Again,  p.  381,  says  the  Chancellor,  "  Lord  Ken- 
"  yon  points  out  the  proper  remedy.  It  is  by  the  ju- 
"  dicial  process  of  scire  facias" 

4  Wheat.  698.     Story.  "  The  truth  is,  that  the  government  has  no 
"  power  to  revoke  a  grant,  even  of  its  own  funds,  when 

m  "  given  to  a  private  person,  or  a  corporation  for  spe- 

"  cial  uses.    It  cannot  recall  its  own  endowments, 

"  granted  to  any  hospital,  or  college,  or  City,  or 

"  Town,  for  the  use  of  such  corporation.    The  only 

"  authority  remaining  to  the  Government,  isjudi- 

"  cial,  to  ascertain  the  validity  of  the  grant,  to  en- 

"  force  its  proper  uses,  to  suppress  frauds,  &c." 

sa*  "  Can  the  Legislature  .  confiscate,  to  its  own  .USfi* 

«  the  private  funds  which  a  munidipuv  vuipuiutlVtt 

"holds  under  its  charter,  without  any  default,  or  con- 

«  sent  of  the  corporators  ?— From  the  very  nature  of 


19 


"  our  government  the  public  faith  is  pledged  the  oth- 
"  er  way,  and  that  pledge  constitutes  a  valid  compact, 
"  and  that  compact  is  subject  only  to  judicial  inqui- 
"  ry,  construction  and  abrogation.  This  court  have 
"  already  had  occasion,  in  other  causes,  to  express 
"  their  opinion  on  this  subject,  and  there  is  not  the 
"  slightest  inclination  to  retract  it."  9  Cranch,  43, 
292. 

From  the  fullest  consideration  of  this  question, 
my  opinion  is,  that  the  franchise,  or  righ't  to  set  up, 
keep,  and  maintain  ferries,  between  New  York  and 
Brooklyn,  is  vested  in  the  city  of  New  York,  and 
until  the  corporation  forfeit  the  franchise,  and  that 
forfeiture  be  ascertained  by  a  judicial  investiga- 
tion, the  Legislature  has  not  the  power  to  revoke 
the  grant,  or  give  it  to  another. 

I  regret  to  be  obliged  to  present  you  with  an 
opinion  of  such  length.  My  apology  for  it  is,  a 
want  of  time  to  make  it  shorter. 

DANIEL  B.  TALLMADGE. 
To  Hon.  C.  W.  Lawrence, 

Mayor  of  the  City  of  New-  Fork. 


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